Foreign precedents in constitutional litigation. The Italian Constitutional Court and Comparative Law: A Tale of Two Courts

Reference to foreign precedents by Constitutional Courts varies steadily across countries. Countries can be divided into two broad groups, a divide following closely the common/civil law divide. While in countries such as Australia, Canada, Ireland, Israel and South Africa, the use of foreign law is widespread, in the second group (comprising Austria, Germany, Hungary, Russia, as well Belgium, France and Spain), such use is much more rare. The few studies conducted about the Italian Constitutional Court suggest it falls without any doubt in the second group. But where exactly in the spectrum of possible types of «use» of comparative law?The empirical research conducted in this survey suggests that the «much ado about nothing» approach adopted in the past to frame the use of foreign law by the Italian Constitutional Court must be questioned. On the one hand, the “explicit” reference to foreign law, albeit being still rare, has improved from a “quality” point of view: the most recent judgments referring to foreign law are often based on a broader legal reasoning than in the past and refer to some of the most relevant issues brought in front of the Court. On the other hand, there is a «second tale» - the one of the «hidden» influence of foreign law on the Italian Constitution - which has not been told yet. This survey tries to open this field of research, examining two sets of data from which one can infer such «underlying» influence: the cases in which foreign law is quoted by the parties, as an argument to persuade the Court, and the cases for which a specific Comparative Law Department established within the Court prepared comparative law dossiers.